--- Am. Tribal Law ----, 2017 WL 962615 (Tulalip C.A.)
Tulalip Tribal Court of Appeals.
GINA K. FRYBERG Appellant { Defendant below} ,
NO. TUL-CV-AP-2016-0088
It is so ordered, this 18 day of January, 2017.

Attorneys and Law Firms
Appearances: Michelle Cortez, for the Appellant; Anthony Jones, for Appellee.
Before: Daniel A. Raas, Chief Justice; Ric Kilmer, Associate Justice; and John Sledd, Associate Justice.


Summary of Proceedings
Daniel A. Raas, Chief Justice

This matter is before the Tu1alip Tribal Court of Appeals pursuant to a Notice of Appeal filed March 29, 2016, by Gina K. Fryberg—arguing that the Tribal Court made a mistake in procedure that affected the outcome of the proceedings in issuing two Orders on March 9, 2016. The first of these was an Order of Default since she had not appeared in any way for the proceedings below at the March 9, 2016, hearing on damages. The second was an Order denying her motion for reconsideration of the January 4, 2016, order adjudging her in violation of her Agreement with the Appellee Tu1alip Tribes Housing Department; her motion for intervention/joinder; and her motion for recusa1 of Chief Judge Whitener.

This is a housing eviction case. On December 23, 2015, the Tu1alip Tribes Housing Department filed with the Tu1alip Tribal Court a complaint for eviction, alleging that Ms. Fryberg had violated a Mutual Help and Occupancy Agreement entered into October 24, 1994, in several ways—including non-payment of rent, having unauthorized people staying at the residence, and engaging in criminal/illegal drug activity on the premises. On January 4, 2016, after Ms. Fryberg failed to appear at the hearing or to answer the complaint, the Court issued an Order and Writ of Restitution, restoring the premises to the Tribes. The Court reserved the matter of damages for a later hearing. Ms. Fryberg did not appeal this January 4, 2016, order.

On March 9, the Court conducted the damages hearing and entered a default judgment for damages. The Tribal Court held that Ms. Fryberg also failed to appear at this March 9 hearing. The Court also addressed a series of motions Ms. Fryberg had filed. It entered an order denying her motion for reconsideration, for intervention/joinder, and for recusal of C.J. Whitener. At no time had she ever presented any defense whatsoever. She made virtually no record at the lower level. Ms. Fryberg now appeals these March 9 orders.


Standard of Review

Section 1.11.10 of the Tulalip Tribal Code (TTC) requires that appealed cases be decided on the basis of the trial court record and any written or oral arguments presented by the parties.

TTC 2.20.090 provides the standard this Court of Appeals is to use when reviewing a decision of the Tribal Court:
(1) A finding of fact by a Judge shall be sustained unless clearly erroneous;
(2) A factual inference drawn by a Judge or jury shall be reviewed as a finding of fact if more than one reasonable inference can be drawn from the fact;
(3) Any finding by the Judge, whether explicit or implicit, of witness credibility shall be reviewed as a finding of fact;
(4) A conclusion of law shall be reviewed de novo, or without deference to the Tribal Court’s determination;
(5) Construction of an unambiguous contract term is reviewed as a conclusion of law;
(6) A matter which is a mixture of law and fact is reviewed by the standard applicable to each element;
(7) A sentence and the imposition of fine, forfeiture, or other penalty, excluding the assessment of damages, shall be reviewed as a discretionary determination of the Tribal Court;
(8) A matter which is within the discretion of the Tribal Court shall be sustained if it is reflected in the record that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion. A matter committed to the discretion of the Tribal Court shall not be subject to the substituted judgment of the Court of Appeals.



The one and only issue before this Court is whether the Tribal Court made mistakes when it issued the March 9 orders. That is the sole grounds for appeal pursuant to TTC 2.20.020(1). It is also worth noting at the outset that a “finding of fact by a Judge shall be sustained unless clearly erroneous.” TTC 2.20.090. That is the governing standard.

However, Ms. Fryberg points to no specific error the Tribal Court allegedly made. She fails to identify any mistake in law or procedure that affected the outcome of this case. In fact, she also fails to specify exactly what relief she seeks on appeal.

Ms. Fryberg argues, vaguely, that she was entitled to reconsideration of the default judgment because she was denied due process. For example, she argues that she should have been given at least twenty days’ notice of that January 4 hearing. The Housing Department counters that this emergency type of eviction (“uninhabitable” per TTC 6.05.110(2)(c)(i) versus “non-payment of rent” per TTC 6.05.110(2)(c)(iii)) required a hearing to be conducted within 20 days (TTC 6.05.120(13) and TTC 6.05.130(3)). The Tribal Court found that she was properly served and given adequate notice of the January 4 hearing as required by the Tulalip Ordinance. This finding is not clearly erroneous. Ms. Fryberg failed to identify to the Tribal Court any matter related to the default that the Court had misapprehended or failed to consider. Reconsideration was therefore properly denied under TTC 2.10.100.

The record further shows that the default order on damages entered March 9, 2016 was proper. Ms. Fryberg did not appear in person or through counsel at a prior setting of the damages hearing on February 8, 2016.1 Appellant’s siblings appeared on February 8 and requested a continuance. Rather than enter a default at that time as it could have, the Court granted a continuance upon certain conditions. Appellant then failed to meet the conditions set by the Tribal Court for her formal appearance. The Default Judgment entered on March 9 awarding the damages sought by the Housing Department contains the handwritten notation “did not participate” on the signature line for Ms. Cortez, Spokesperson for Ms. Fryberg. This notation is ambiguous in that it could either indicate that Ms. Cortez, present or not, did not participate in the damages hearing, or it could indicate that neither Ms. Cortez nor Ms. Fryberg participated. This ambiguity is resolved in the March 9 Order in part denying reconsideration of the January default order. Paragraph 2 of this Motions Order states that “Ms. Fryberg did not participate in the damages hearing.” The recording of the March 9 hearing reflects that Ms. Fryberg had been directed to file both a Motion to Appear Telephonically and a Motion for Continuance of the damages hearing to March 9 from its prior scheduled date. That Motion for Continuance was to contain a certification from a Treatment Center that Ms. Fryberg was in treatment and unable physically to appear. The record does not contain such a certification. In her Notice of Appeal, Ms. Fryberg acknowledges that she was required to show that she was in treatment, but, rather than providing a written certification from a Treatment Center she states that her sister had a telephone number at which she could be reached. She was on a telephone connection with the Tribal Court during the first part of the March 9 hearing. There is nothing in the record on appeal showing that Ms. Fryberg was in treatment and thus unable to appear in person at the March 9 hearing. Her attempt to appear by telephone at the March 9 hearing is of no avail, since it did not address the Tribal Court’s concern that her inability to appear was due to her physical location in a Treatment Center. Absent the third party certification, the Tribal Court properly refused to let her testify. In light of Ms. Fryberg’s repeated prior failures to appear for hearings, requiring such a certification was not a clearly erroneous condition. Nor, under the facts of this case, was it an abuse of discretion to require that Appellant appear personally and not merely through counsel.2

The trial court’s factual determination that Ms. Fryberg was not legally present, either in person or telephonically, was not clearly erroneous. A party who is not present is legally in default. The trial court’s Default Order of March 9, 2016, is affirmed.

Ms. Fryberg also appeals the denial of her motion to have Judge Whitener recused from all future proceedings. In her motion, Ms. Fryberg argued that Judge Whitener was biased because he commented that ignorance of court rules is no excuse for non-compliance, and he knew facts regarding Ms. Fryberg’s conduct that he gleaned as presiding judge in other cases.

There is a procedure for requesting recusal for cause provided in TTC 2.05.060. Ms. Fryberg failed to file any affidavit of prejudice or to otherwise comply with recusal for cause under that statute. See TTC 2.05.060(2). Nonetheless, Judge Whitener treated her motion as a proper request for voluntary recusal under TTC 2.05.060(3), but found no bias or other reason to grant that motion for recusal.

Voluntary recusal is discretionary. See, e.g., Hoopa Valley Tribal Court v. Taylor, 7 NICS App. 3, 5 (Hoopa Valley Tr. Ct. App. 2005). We find no abuse of discretion. Because Ms. Fryberg was in default, judgment against her was required, regardless of any evidence in other cases, favorable to Ms. Fryberg or not. C.J. Whitener’s comment from the bench likewise showed no bias or other basis for recusal.

We have also reviewed the record regarding the denial of the motion by Ms. Fryberg’s sibling for intervention or joinder. We agree with the Tribal Court that, under TTC 2.10.060(2), the Housing Department was not required to join Ms. Fryberg’s siblings in the eviction proceeding, as they had no legally protectable interest in the tenancy and their presence was not needed to provide complete relief. We also agree that, because the siblings identified no statutory right to intervene, no legal interest that would be affected, and no claim or defense, intervention under TTC 2.10.060 (8) was properly denied.

We give considerable deference to the Tribal Court. It is our role to support the Tribal Court’s discretionary decisions absent an abuse of discretion, and “[a] finding of fact by a Judge shall be sustained unless clearly erroneous.” TTC 2.20.090. We cannot find any clear error or abuse of discretion, nor any error of law.


Conclusion and Order

This Court concludes that the Tribal Court did not commit any mistakes in interpreting the law or in procedure that affected the outcome of this case.

It is hereby ORDERED that the March 9, 2016, orders of the Tribal Court are AFFIRMED.

Ric Kilmer, Associate Justice

John Sledd, Associate Justice

Daniel A. Raas, Chief Justice

All Citations
--- Am. Tribal Law ----, 2017 WL 962615



Ms. Cortez, who appears in this appeal as Spokesperson for Appellant, stated on the record at the February 8 hearing that she was present as counsel for Appellant’s siblings, not on behalf of Appellant.


The Tribal Court also ruled on February 8 that an appearance by an attorney-in-fact under a power of attorney, without the named party present, was categorically insufficient to avoid default under TTC 2.20.050, which requires that actions be prosecuted or defended “in the name of the real party in interest.” Order of March 9, 2016, Para. 4. At the March 9 hearing, the Tribal Court appeared to extend this ruling to appearances by counsel, unaccompanied by their client. Appellant has not challenged these novel interpretations of the Code in her appeal, and we do not reach these issues. We note that the effect of the Power of Attorney in this case is debatable, as it states that it “must” be attested by two witnesses, and no attestations are present. There was also evidence at the March 9 hearing that counsel appearing for Ms. Fryberg had been retained by the attorney-in-fact and not by Ms. Fryberg, who contends that she was in treatment and under a communications blackout.